COURT OF APPEALS OF VIRGINIA 

Before: Chief Judge Fitzpatrick, Judges Benton, Elder, Frank, Humphreys, Clements, Felton, 

 Kelsey and McClanahan 

Argued at Richmond, Virginia 

PHILLIP MORRIS WASHINGTON 

 OPINION BY 

v. Record No. 1734-03-4 JUDGE D. ARTHUR KELSEY 

 AUGUST 9, 2005 

COMMONWEALTH OF VIRGINIA 

UPON REHEARING EN BANC 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

Ann Hunter Simpson, Judge 

 Joseph Taylor Brown (Simmons, Brown & Kane, P.L.C., on brief), 

for appellant. 

 Eugene Murphy, Senior Assistant Attorney General (Jerry W. 

Kilgore, Attorney General, on briefs), for appellee. 

Phillip Morris Washington challenges his conviction for malicious wounding “after 

having been twice convicted of a violent felony” in violation of Code § 18.2-51 and 

§ 19.2-297.1. On appeal, Washington contends that the trial judge erred in permitting the 

Commonwealth to prove his two prior robbery convictions during the guilt phase of the 

bifurcated trial. Finding no error, we affirm the judgment of the trial court. 

I. 

 Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from 

introducing evidence of his two prior robbery convictions during the guilt phase of the trial. 

Washington asserted the prior convictions were not “relevant and probative” and would be 

“unduly prejudicial” during the guilt phase of the trial. The trial court disagreed, holding that 

Code § 19.2-297.1 ⎯ like all other Virginia recidivism statutes ⎯ permitted the introduction of 

the prior convictions during the guilt phase. The jury found Washington guilty of malicious 
- 2 -

wounding “after having been twice convicted of a violent felony” in violation of Code § 18.2-51 

and § 19.2-297.1. The jury imposed a life sentence as required by Code § 19.2-297.1. 

II. 

On appeal, Washington argues that Code § 19.2-297.1 forbids the introduction of his 

prior robbery convictions in the guilt phase of his jury trial. As Washington sees it, Code 

§ 19.2-297.1 serves only as a sentencing enhancement statute ⎯ thus making his prior felony 

convictions relevant in the punishment phase of the trial, but not the guilt phase. A divided panel 

of our Court agreed with this reasoning. Washington v. Commonwealth, 44 Va. App. 157, 604 

S.E.2d 92 (2004). Having considered the matter en banc, we hold the statute does not forbid the 

recidivism evidence from being presented in the guilt phase of a jury trial. 

 A. RECIDIVISM & THE COMMON LAW

Though the common law did not create recidivist crimes as such, it did develop a 

well-recognized order of proof in such cases. “At common law, evidence of prior convictions 

was received at the trial of the principal offense, and the jury decided guilt and recidivism 

simultaneously.” Recidivism & Virginia’s Come-Back Law, 48 Va. L. Rev. 597, 613 (1962). 

This “common law procedure for applying recidivist statutes . . . is, of course, the simplest and 

best known procedure.” Spencer v. Texas, 385 U.S. 554, 566 (1967) (holding common law 

recidivism procedure did not violate due process principles).1

 

1

 See generally Harold Dubroff, Recidivist Procedures, 40 N.Y.U. L. Rev. 332, 336 

(1965) (describing the “common law procedure” as one “in which the issue of guilt for the 

present offense and the issue of recidivism are determined simultaneously” by the same trier of 

fact), and David S. Sidikman, The Pleading & Proof of Prior Convictions in Habitual Criminal 

Prosecutions, 33 N.Y.U. L. Rev. 210, 211 (1958) (recognizing that the “common-law method 

requires both an allegation of the former conviction in the present indictment or information and 

proof of that allegation at the trial of the new charge”) ⎯ both cited in Spencer, 385 U.S. at 566 

n.10; see also Louise Danaë Dale, Criminal Law: Procedure: Propriety of Jury Consideration of 

Prior Offenses, 5 UCLA L. Rev. 320, 321 (1958) (“The early English common-law allowed the 
- 3 -

As a result, “in the absence of a statute in derogation of the common law, most 

jurisdictions have refused to deviate from the old practice.” Recidivism & Virginia’s ComeBack Law, supra, at 613-14.2

 “It is not easy to see how, in the absence of some statutory 

provision permitting it,” a defendant can insist that the prior convictions be excluded from the 

guilt phase of the principal charge. People v. Sickles, 51 N.E. 288, 289 (N.Y. 1898). The 

common law, moreover, rejected any “legal presumption” that ordering the proof in this manner 

would compromise the integrity of the trial. Johnson v. People, 55 N.Y. 512, 514 (1874). 

Consistent with the common law, the Virginia Penitentiary Act of 1796 allowed 

recidivism convictions to be admitted during the trial. See 1796 Va. Acts, ch. 2, §§ 24, 42, 

modified by Revised Code of 1819; see also Tyson v. Hening, 205 Va. 389, 392, 136 S.E.2d 832, 

835 (1964). The Act also permitted a separate supplemental proceeding in the Richmond Circuit 

Court solely to determine a prisoner’s recidivism status and to enhance the aggregate punishment 

accordingly. Id. Admitting the prior conviction at trial, however, met with disfavor in the 

courts. Some Virginia jurists considered it akin to “trying a man with a rope about his neck.” 

Wright v. Commonwealth, 109 Va. 847, 855, 65 S.E. 19, 22 (1909) (quoting Rand v. 

Commonwealth, 50 Va. (9 Gratt.) 738, 753 (1852)). 

The General Assembly responded in 1918 by amending the Penitentiary Act ⎯ then 

called the Virginia Habitual Criminal Act ⎯ to employ the supplemental proceeding in the 

Richmond Circuit Court as the exclusive means of imposing the recidivism sentencing 

 

allegation of former conviction to be included in the indictment and read to the jury.” (citing Rex 

v. Jones, 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))). 

2

 See also State v. Findling, 144 N.W. 142, 143 (Minn. 1913) (following the “general 

rule” allowing evidence of the prior convictions during the guilt phase of trial); Maguire v. State, 

47 Md. 485, 497 (1878) (observing that “the practice in England, until changed by statute, was, 

as it is here, to allow the prosecution to put the prior conviction before the jury as part of its 

evidence in chief, and before the accused commenced his evidence” in defense (citing Rex v. 

Jones, 6 Car. & P. 391, 172 Eng. Rep. 1290 (1834))). 
- 4 -

enhancement. Former Code § 5054 (1919). This “non-common law method” of addressing the 

issue remained the law in Virginia for many years. Recidivism & Virginia’s Come-Back Law, 

supra, at 600-01. 

In 1982, the General Assembly repealed the Virginia Habitual Criminal Act authorizing 

the supplemental recidivism proceeding. 1982 Va. Acts, ch. 636 (rescinding Code § 53-296). 

By that time, the legislature had enacted several crime-specific recidivism statutes.3

 See

generally Ansell v. Commonwealth, 219 Va. 759, 762, 250 S.E.2d 760, 762 (1979). And, to a 

one, each such statute has been interpreted by Virginia courts to allow recidivism evidence to be 

presented during the guilt phase of trial.4

 See, e.g., Medici v. Commonwealth, 260 Va. 223, 

228-29, 532 S.E.2d 28, 31-32 (2000) (interpreting Code § 18.2-67.5:3(A)).5

 

3

 See, e.g., Code § 18.2-104 (misdemeanor larceny); § 18.2-232 (fraud in sale of fuels or 

oils); § 18.2-248 (possession with the intent to distribute or distributing controlled substances); 

§ 18.2-270 & -271 (driving while intoxicated); § 18.2-381 (obscenity generally). Since then, the 

General Assembly has enacted several more: Code § 18.2-46.3:1 (street gang crimes); 

§ 18.2-67.5:1 to -67.5:3 (sexual offenders); § 18.2-144 (maiming, killing or poisoning of 

animals); § 18.2-246.14 (sale of counterfeit cigarettes); § 18.2-255.2 (sale of drugs near certain 

properties); § 18.2-258 (drug related common nuisances); § 18.2-311.2 (firearm offenses); 

§ 18.2-369 (abuse/neglect of incapacitated adults); § 18.2-374.1:1 (possession of child 

pornography); § 18.2-376.1 (using a computer in connection with certain obscenity offenses); 

§ 18.2-515 (racketeering). 

4

 See also Griswold v. Commonwealth, 252 Va. 113, 116 & n.2, 472 S.E.2d 789, 790 & 

n.2 (1996) (overruled on other grounds by Alabama v. Shelton, 535 U.S. 654 (2002)) (stating 

that “the prior offense must be charged and proven” (quoting Calfee v. Commonwealth, 215 Va. 

253, 255, 208 S.E.2d 740, 741 (1974))); Brown v. Commonwealth, 226 Va. 56, 58, 307 S.E.2d 

239, 240 (1983); Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 

(1939); Berry v. Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687 (1996) (holding the 

conviction “of a prior like offense is an element of the charge as it was set forth in the 

indictment, and is also a necessary predicate to an enhanced penalty”); Dotson v. 

Commonwealth, 18 Va. App. 465, 467-68, 445 S.E.2d 492, 493-94 (1994); Pittman v. 

Commonwealth, 17 Va. App. 33, 35-36, 434 S.E.2d 694, 695-96 (1993); Farmer v. 

Commonwealth, 10 Va. App. 175, 179-80, 390 S.E.2d 775, 776-77 (1990), aff’d, 12 Va. App. 

337, 404 S.E.2d 371 (1991) (en banc); Glover v. Commonwealth, 3 Va. App. 152, 161, 348 

S.E.2d 434, 441 (1986), aff’d, 236 Va. 1, 372 S.E.2d 134 (1988). 

5

 It is true, as Washington points out, that Medici disclaimed any interest in addressing 

“policy” judgments about the subject or deciding whether “a prior conviction is an element of the 
- 5 -

 B. THE INTERPLAY BETWEEN CODE §§ 19.2-297.1 & 19.2-295.1

In Virginia, the “Legislature is presumed to have known and to have had the common law 

in mind in the enactment of a statute. The statute must therefore be read along with the 

provisions of the common law, and the latter will be read into the statute unless it clearly appears 

from express language or by necessary implication that the purpose of the statute was to change 

the common law.” Moses v. Commonwealth, 45 Va. App. 357, 361 n.2, 611 S.E.2d 607, 609 n.2 

(2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 

(1974)). Along similar lines, we “assume legislative familiarity with Virginia case law when the 

legislature enacts a statute which might impact upon that law.” Dodson v. Potomac Mack Sales 

& Serv., Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); see also Waterman v. Halverson, 261 

Va. 203, 207, 540 S.E.2d 867, 869 (2001) (“The General Assembly is presumed to be aware of 

the decisions of this Court when enacting legislation.”). 

Seeking a construction consistent with common law practice and our caselaw, we turn to 

Code § 19.2-297.1. Enacted in 1994, subsection A of the statute addresses recidivism involving 

crimes of violence: 

Any person convicted of two or more separate acts of violence 

when such offenses were not part of a common act, transaction or 

scheme, and who has been at liberty as defined in § 53.1-151 

between each conviction, shall, upon conviction of a third or 

subsequent act of violence, be sentenced to life imprisonment and 

shall not have all or any portion of the sentence suspended, 

provided it is admitted, or found by the jury or judge before whom 

he is tried, that he has been previously convicted of two or more 

such acts of violence. 

 

offense charged.” Id. at 229, 532 S.E.2d at 32. But we do not think these caveats mean that 

Medici left open the question whether prior convictions could be introduced in the guilt phase. If 

the statute forbids this, as Washington claims, there would have been no logical reason for 

Medici to declare constitutional the statute’s effort to authorize it. In other words, we think it too 

unlikely to be true that Medici intended to declare a statute ⎯ albeit wrongly interpreted by the 

challenger on the very point in contest ⎯ to be constitutional when the correct interpretation of 

the statute would moot the constitutional challenge altogether. 
- 6 -

The General Assembly coupled this recidivism statute with the jury bifurcation statute, Code 

§ 19.2-295.1, enacting both in the same bill. See 1994 Va. Acts, ch. 828 (S.B. 117). 

The jury bifurcation statute requires a “separate proceeding limited to the ascertainment 

of punishment” before the same jury deciding the defendant’s guilt. Code § 19.2-295.1. It 

authorizes the prosecution to introduce into evidence only the defendant’s “prior criminal 

convictions by certified, attested or exemplified copies of the record of conviction.” Id. Rule 

3A:17.1(e)(1) repeats this limitation. If the defense does not put on evidence, the prosecution 

cannot go any further than introducing the conviction orders.6 Only when the defense puts on 

mitigation evidence may the prosecution then rebut it with any “relevant, admissible evidence 

related to punishment.” Code § 19.2-295.1. 

Conspicuously absent from the jury bifurcation statute and Rule 3A:17.1 is any authority 

for the prosecution to present substantive evidence (through witnesses and exhibits) showing 

how the prior convictions were not part of a “common act, transaction or scheme” or whether the 

defendant was “at liberty” between each such conviction ⎯ two matters on which the 

prosecution bears the burden of proof under Code § 19.2-297.1(A). If the defendant does not 

concede these two points, neither can be invariably assumed from the conviction orders 

themselves. Final conviction and sentencing orders say nothing about the underlying crime’s 

relationship to other crimes. Nor do such orders, particularly those entered before the abolition 

of parole, identify the actual period of incarceration. 

 

6

 See generally Jaccard v. Commonwealth, 268 Va. 56, 597 S.E.2d 30 (2004) (holding 

that Code § 19.2-295.1 authorizes the admission of conviction orders, but by omission, does not 

authorize the admission of probation violation orders); Sheikh v. Buckingham Corr. Ctr., 264 Va. 

558, 566, 570 S.E.2d 785, 789 (2002) (holding that the defendant’s “decision not to present 

evidence during the sentencing phase precluded the prosecutor from introducing any evidence 

other than a record of [defendant’s] prior offenses”). 
- 7 -

While not saying as much, Washington appears to assume the evidentiary limitation in 

the jury bifurcation statute was a mere legislative oversight. The bifurcation statute, he reasons, 

should allow in the penalty phase any evidence required by any recidivism statute ⎯ not just 

copies of the prior conviction orders. The only way to sustain that position, however, would be 

to “judicially graft” an unwritten provision into the statute, Cent. Va. Obstetrics & Gynecology 

Assocs., P.C. v. Whitfield, 42 Va. App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle 

“guise of judicial interpretation,” Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 

48, 51 (1991). It may or may not be better public policy to structure recidivism proof differently. 

When interpreting statutes, however, such judgments are not ours to make. Cf. McBoyle v. 

United States, 283 U.S. 25, 27 (1931) (observing that judicial statutory construction cannot 

proceed “upon the speculation that, if the legislature had thought of it, very likely broader words 

would have been used”). 

That said, we accept some potential for prejudice likely accompanies the common law 

order of proof. It is for just this reason that we give cautionary instructions directing jurors to 

consider the admissible, but not inadmissible, aspects of recidivism evidence. Washington finds 

this remedy both naïve and illusory. If it is, though, the same can be said of Washington’s 

proposed remedy. The violent recidivist statute requires the jury to determine three things: 

 whether at least two prior violent felony convictions exist, 

 whether any were part of “a common act, transaction or 

scheme,” and 

 whether the defendant was “at liberty” between each such 

conviction. 

Code § 19.2-297.1(A). If the jury finds against the defendant on all three, he receives a 

mandatory life sentence ⎯ a punishment far in excess of the average term of years for the 

principal crime. 
- 8 -

 If forced to decide the recidivism questions during the penalty phase of a bifurcated trial, 

the jurors would have to do so at the same time as receiving evidence of every other criminal 

conviction the defendant ever received. And if the defendant puts on mitigation evidence 

suggesting his good character and capacity at self-reformation, the jurors would also likely hear 

from the prosecution on rebuttal all about his bad character and the demonstrably poor odds of 

his rehabilitation. 

To ensure that jurors do not invoke the violent recidivist statute as an emotional response 

to the defendant’s non-violent criminal past or his propensity generally for crime, we would 

necessarily have to give them a cautionary instruction ⎯ the very thing Washington says we 

cannot rely upon. To be sure, the only way to completely avoid the possibility of prejudice 

would be to trifurcate the case between a guilt phase addressing the principal crime, followed by 

a guilt phase dealing with Code § 19.2-297.1(A)’s recidivism evidence, later followed by a 

general sentencing hearing for everything else properly admitted under Code § 19.2-295.1 on the 

general subject of punishment. While a trial judge may have the discretion to segment a criminal 

trial in this manner, we know of no authority requiring him to do so.7

 

7

 We also reject Washington’s argument that the particular placement of Code 

§ 19.2-297.1 in Chapter 18 of Title 19.2 (entitled “Sentence; Judgment; Execution of Sentence”) 

implies that the recidivism statute should be considered purely a tool of sentencing. In Brown v. 

Commonwealth, 226 Va. 56, 307 S.E.2d 239 (1983), the Court addressed former Code 

§ 19.2-297, a recidivism statute creating a compound larceny offense. It too was codified in 

Chapter 18 of Title 19.2. Brown nonetheless held the recidivism evidence should be admitted 

during the guilt phase of the trial. Id. at 58-59, 307 S.E.2d at 240-41. The statute’s particular 

placement in the Code appeared to have no legal relevance to the reasoning of Brown. We can 

hardly hold it has dispositive relevance here. As a general rule, “the title of a statute does not 

give meaning to a statute.” Foster v. Commonwealth, 44 Va. App. 574, 580, 606 S.E.2d 518, 

521 (2004) (citing Code § 1-13.9). All the more, we cannot extrapolate a statute’s meaning from 

the title of a Code chapter. 
- 9 -

III. 

Consistent with common law practice and settled Virginia caselaw, we hold that the 

recidivism evidence necessary to implicate the terms of Code § 19.2-297.1 may be admitted 

during the guilt phase of a bifurcated jury trial.8

 The trial court, therefore, did not err in this case 

by structuring the order of proof in this manner. 

 Affirmed.

 

8

 Because Code § 19.2-297.1(A) allows recidivism evidence to be admitted during the 

guilt phase, we do not address whether admitting such evidence in the sentencing phase would 

implicate the constitutional concerns raised by the concurrence. 
- 10 -

Humphreys, J., concurring. 

I agree that Code § 19.2-297.1 should be construed as permitting the introduction of a 

defendant’s relevant prior felony convictions during the guilt phase of a bifurcated trial. Unlike 

the majority, however, I believe that the common law provides minimal guidance in this area 

beyond a historical starting point. Thus, I write separately to clarify the relevant principles of 

statutory construction that I believe control the outcome of this case. 

I. The Plain Language of Code § 19.2-297.1

As an initial matter, we must consider the plain language of the statute, for “‘[w]here the 

legislature has used words of a plain and definite import the courts cannot put upon them a 

construction which amounts to holding the legislature did not mean what it has actually 

expressed.’” Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) 

(quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). That is, “[w]e must . . . 

assume that the legislature chose, with care, the words it used when it enacted the . . . statute, and 

we are bound by those words as we interpret the statute.” Id. 

Code § 19.2-297.1, the so-called “three-strikes” statute, provides as follows: 

Any person convicted of [1] two or more separate acts of violence 

[2] when such offenses were not part of a common act, transaction, 

or scheme, and [3] who has been at liberty as defined in § 53.1-151 

between each conviction, shall, upon conviction of a third or 

subsequent act of violence, be sentenced to life imprisonment and 

shall not have all or any portion of his sentence suspended, 

provided it is admitted, or found by the jury or the judge before 

whom he is tried, that he has been previously convicted of two or 

more such acts of violence. 

(Emphasis added). By the express terms of the statute, the jury (or other finder of fact) must 

therefore make three specific findings before the statute is implicated. Specifically, the jury must 

find: (1) the defendant has at least two prior violent felony convictions, (2) the prior felonies 
- 11 -

were not part of a common act, transaction, or scheme, and (3) the defendant was at liberty 

between each of the felonies. See id.

However, the plain language of the statute is silent as to whether these three facts should 

be “found” during the guilt phase or during the sentencing phase of the trial. Thus, we must 

consider other settled principles of statutory construction to determine whether Code 

§ 19.2-297.1 permits the introduction of evidence relating to the defendant’s prior felony 

convictions during the guilt phase of a bifurcated trial. See Va. Dep’t of Labor & Indus. v. 

Westmoreland Coal Co., 233 Va. 97, 101, 353 S.E.2d 758, 762 (1987) (noting that, where a 

statute “is susceptible to more than one meaning,” the court “must resort to extrinsic evidence 

and the rules of construction to determine legislative intent, ‘the paramount object of statutory 

construction’” (quoting Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 678-79, 222 S.E.2d 

793, 797 (1976))). In doing so, we must be cognizant that there is no hierarchy among rules of 

statutory construction. Rather, considering all relevant and applicable principles of statutory 

construction, we should select that interpretation which, overall, best comports with legislative 

intent. 

II. The “Common Law”

As noted in the majority opinion, a statute codifying common law principles should 

generally be interpreted in a manner “‘most near to the reason of the common law.’” Moses v. 

Commonwealth, 45 Va. App. 357, 361 n.2, 611 S.E.2d 607, 609 n.2 (2005) (en banc) (quoting 

Chichester v. Vass, 5 Va. (1 Call) 83, 102 (1797)). As the majority further notes, a statute that 

codifies the common law “‘must therefore be read along with the provisions of the common law, 

and the latter will be read into the statute unless it clearly appears from express language or by 

necessary implication that the purpose of the statute was to change the common law.’” Id.

(quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). 
- 12 -

In my view, however, Code § 19.2-297.1 does not “codify[] common law principles.” As 

the majority opinion sets forth, recidivist statutes have long been in existence in Virginia and 

elsewhere. However, the common law—as opposed to statutory law—did not authorize the 

imposition of heightened sentences for recidivists. Nor did any of the recognized common law 

crimes (e.g., rape, robbery, arson, murder, burglary) require—or even allow—proof that the 

defendant was a recidivist. Code § 19.2-297.1 cannot be said to codify a common law rule that 

does not exist. See De Gesualdo v. People, 364 P.2d 374, 378 (Or. 1961) (“The philosophical 

approach to the habitual criminal statute has always been that it is in derogation of the common 

law and must therefore be strictly construed.”); State ex rel. Ringer v. Boles, 157 S.E.2d 554, 

558 (W. Va. 1967) (“Habitual criminal proceedings providing for enhanced or additional 

punishment on proof of one or more prior convictions are wholly statutory. . . . Being in 

derogation of the common law, such statutes are generally held to require a strict construction in 

favor of the prisoner.”).9

Because Code § 19.2-297.1 does not seek to codify a recognized common law principle, 

the concept that a statute codifying the common law “‘must [] be read along with the provisions 

of the common law,’” Moses, 45 Va. App. at 361 n.2, 611 S.E.2d at 609 n.2 (citation omitted), is 

inapplicable. Thus, to the extent that the majority relies solely on what it calls the “common 

 

9

 Allowing the prosecution to present allegations and proof of past convictions during a 

single trial, as opposed to during a second and subsequent proceeding, is sometimes referred to 

as the “common-law procedure” for implementing a recidivist statute. See Spencer v. Texas, 

385 U.S. 554, 565 (1967). Even if we were to accept that this procedure has somehow been 

elevated to common law status, it is of little help in resolving the issue presented in this appeal. 

That is, the so-called “common law” procedure allows recidivism to be decided during the same 

trial as the present, underlying charge. The “non-common-law” procedure, once codified in 

Virginia, requires recidivism to be decided during a separate, subsequent trial. Neither procedure 

speaks to whether recidivism may be decided during a separate phase of a single, bifurcated trial. 
- 13 -

law,” I believe the majority is oversimplifying the rather complex issue of statutory construction 

presented in this case.10

III. Judicial Interpretation of Other Recidivist Statutes

In Berry v. Commonwealth, 22 Va. App. 209, 468 S.E.2d 685 (1996), this Court held 

that, 

[a]lthough . . . evidence of other crimes is inadmissible if relevant 

only to show a probability of guilt or a propensity for criminal 

conduct, evidence of other crimes “is properly received if it is 

relevant and probative of an element on trial, such as an element of 

the offense charged or the required predicate for enhanced 

punishment.” 

Id. at 213, 468 S.E.2d at 687 (quoting Pittman v. Commonwealth, 17 Va. App. 33, 35, 434 

S.E.2d 694, 695 (1993)). Accordingly, under Berry, proof of a prior conviction is admissible 

during the guilt phase of a bifurcated trial if it is either: (1) an element of the offense charged, or 

(2) a required predicate for enhanced punishment. 

It is well established that, if a defendant is charged with violating a recidivist statute, 

proof of the defendant’s prior felony convictions is admissible as a “required predicate for 

enhanced punishment.” Id. (holding that the trial court did not err in allowing evidence of a 

“prior conviction for a like offense . . . during the guilt phase of the trial,” reasoning that the 

evidence was admissible because, inter alia, it was a “necessary predicate to an enhanced 

penalty”); see also Harris v. Commonwealth, 26 Va. App. 794, 803, 497 S.E.2d 165, 169 (1998) 

(“A prior conviction is used for ‘sentence enhancement’ when it is admitted . . . during trial to 

 

10 Of course, this does not mean that the many cases construing Virginia’s other recidivist 

statutes are entirely inapplicable. The General Assembly may certainly be said to have been 

aware of the construction and effect given to prior recidivist statutes when it enacted Code 

§ 19.2-271.1. To that end, those cases are relevant—though not dispositive—when delving into 

the issue of legislative intent. See Part III, infra. 
- 14 -

convict a defendant of violating a ‘recidivist statute,’ i.e., a statute that criminalizes the 

commission of a successive violation of a particular offense[.]”). 

Moreover, this Court and the Virginia Supreme Court have consistently held that, for a 

defendant to be convicted under a recidivist statute, the prior convictions must be charged in the 

indictment and proved to the jury. See, e.g., Farmer v. Commonwealth, 10 Va. App. 175, 180, 

390 S.E.2d 775, 777 (1990) (“For the heavier punishment to be imposed by the jury or the court 

trying the case without a jury, the prior offense must be charged and proven.” (internal 

quotations omitted)); see also Brown v. Commonwealth, 226 Va. 56, 58-59, 307 S.E.2d 239, 240 

(1983) (“[T]o make the accused subject, under a repeating-offender statute, to a heavier penalty 

. . . the previous conviction must be alleged in the indictment . . . .”); Calfee v. Commonwealth, 

215 Va. 253, 255, 208 S.E.2d 740, 741 (1974); Commonwealth v. Ellett, 174 Va. 403, 409, 4 

S.E.2d 762, 754 (1939). Because the prior convictions necessary to sustain a conviction under a 

recidivist statute must be charged in the indictment, we have therefore held that proof of the prior 

conviction is admissible during the guilt phase of the trial because it is an element of the 

“aggravated” recidivist offense. See Berry, 22 Va. App. at 213, 468 S.E.2d at 687 (holding that 

evidence of prior convictions was admissible, reasoning that, inter alia, “[c]onviction of a prior 

like offense is an element of the charge as it was set forth in the indictment . . .”); see also

Pittman, 17 Va. App. at 35-36, 434 S.E.2d at 695 (holding that the trial court did not err in 

admitting proof of six prior convictions, reasoning that, “[t]o prove the charge set forth in the 

indictment, the Commonwealth was obligated to prove that [the defendant] was guilty of a third 

or subsequent offense”); Farmer, 10 Va. App. at 179, 390 S.E.2d at 776 (holding that proof of a 

prior conviction is “necessary to prove the substantive offense of driving under the influence as a 

third or subsequent offense and, therefore, is admissible during the guilt stage of a bifurcated 

trial”). 
- 15 -

Thus, according to earlier judicial interpretations of similar recidivist statutes, proof of a 

defendant’s prior like convictions is admissible during the guilt phase of the trial because it is 

both a required predicate for enhanced punishment and an element of the offense charged. See, 

e.g., Berry, 22 Va. App. at 213, 468 S.E.2d at 687. This rule was established well before the 

1994 enactment of both Code § 19.2-297.1 and the bifurcation statute, Code § 19.2-295.1. See, 

e.g., Brown, 226 Va. at 58, 307 S.E.2d at 240 (decided in 1983); Pittman, 17 Va. App. at 35-36, 

434 S.E.2d at 695 (decided in 1993); Farmer, 10 Va. App. at 179, 390 S.E.2d at 776 (decided in 

1990). Because the General Assembly may be presumed to have knowledge of the judicial 

interpretation of other, similar statutes, it can be inferred that, had the General Assembly wished 

to alter existing law, it would have so provided. See Waterman v. Halverson, 261 Va. 203, 207, 

540 S.E.2d 867, 869 (2001) (“The General Assembly is presumed to be aware of the decisions of 

this Court when enacting legislation.” (citing Dodson v. Potomac Mack Sales & Serv., Inc., 241 

Va. 89, 94, 400 S.E.2d 178, 180 (1991))); cf. Tazewell County Sch. Bd. v. Brown, 267 Va. 150, 

163, 591 S.E.2d 671, 677 (2004) (“We have repeatedly held that the General Assembly is 

presumed to have knowledge of the . . . interpretation of statutes, and the General Assembly’s 

failure to make corrective amendments evinces legislative acquiescence in [that interpretation].” 

(internal quotations omitted)). 

IV. Constitutional Considerations

Also, “where a statute is susceptible of two constructions, by one of which grave and 

doubtful constitutional questions arise and by the other of which such questions are avoided, our 

duty is to adopt the latter.” United States v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909); 

see also Va. Soc’y for Human Life v. Caldwell, 256 Va. 151, 157, 500 S.E.2d 814, 816 (1998) 

(“‘[A] statute will be construed in such a manner as to avoid a constitutional question wherever 

this is possible.’” (quoting Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940))). Here, 
- 16 -

adopting the construction of the three-strikes statute urged by the defendant would raise “grave 

and doubtful constitutional questions” about the continuing viability of the three-strikes scheme. 

The United States Supreme Court has recently re-affirmed the fundamental constitutional 

principle that: “Any fact (other than a prior conviction) which is necessary to support a sentence 

exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict 

must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States 

v. Booker, 125 S. Ct. 738, 756 (2005); see also Blakely v. Washington, 124 S. Ct. 2531, 

2536 (2004); Ring v. Arizona, 536 U.S. 584, 589 (2002); Apprendi v. New Jersey, 530 U.S. 466, 

491 (2000); Jones v. United States, 526 U.S. 227, 243 (1999).11 This rule is grounded in the 

premise that “the Constitution protects every criminal defendant ‘against conviction except upon 

proof beyond a reasonable doubt of every fact necessary to constitute the crime of which he is 

charged.’” Booker, 125 S. Ct. at 748 (quoting In re Winship, 397 U.S. 358, 364 (1970)); see also

United State v. Gaudin, 515 U.S. 506, 511 (1995) (noting that the “Constitution gives a criminal 

defendant the right to demand that a jury find him guilty of all the elements of the crime with 

which he is charged”). 

However, the Supreme Court has expressly rejected a rule that would require “elements 

of the offense” to be proven to a jury beyond a reasonable doubt, while exempting “sentencing 

factors” from the same requirement. See Ring, 536 U.S. at 604-05 (“Apprendi repeatedly 

 

11 If proof of the fact would not enhance the sentence beyond the statutory maximum, 

then that fact need not be proven to the jury beyond a reasonable doubt. See Booker, 125 S. Ct. 

at 750 (“[W]hen a trial judge exercises his discretion to select a specific sentence within a 

defined range, the defendant has no right to a jury determination of the facts that that judge 

deems relevant.” (emphasis added)); Apprendi, 530 U.S. at 481 (“[N]othing . . . suggests that it is 

impermissible for judges to exercise discretion . . . in imposing a judgment within the range

prescribed by statute.” (emphasis in original)); see also McMillan v. Pennsylvania, 477 U.S. 79, 

84 (1986) (rejecting argument “that whenever a State links the ‘severity of punishment’ to ‘the 

presence or absence of an identified fact’ the State must prove that fact beyond a reasonable 

doubt” (citing Patterson v. New York, 432 U.S. 197, 214 (1977)). 
- 17 -

instructs . . . that the characterization of a fact or circumstance as an ‘element’ or a ‘sentencing 

factor’ is not determinative . . . .”). Rather, “[i]f a State makes an increase in a defendant’s 

authorized punishment contingent on the finding of a fact, that fact—no matter how the State 

labels it—must be found by a jury beyond a reasonable doubt.” Id. at 602 (citing Apprendi, 530 

U.S. at 482-83). Thus, “[t]he dispositive question . . .‘is not one of form, but of effect.’” Id.

(quoting Apprendi, 530 U.S. at 494); see also Booker, 125 S. Ct. at 748 (“[T]he characterization 

of critical facts is constitutionally irrelevant.”); Ring, 536 U.S. at 610 (Scalia, J., concurring) 

(“[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts 

essential to imposition of the level of punishment that the defendant receives—whether the 

statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by 

the jury beyond a reasonable doubt.”); Apprendi, 530 U.S. at 476 (“Merely using the label 

‘sentence enhancement’ . . . surely does not provide a principled basis for treating [those facts] 

differently.”). 

The Virginia “three-strikes” statute requires proof of: (1) two prior convictions; (2) that 

were not part of a common act, transaction, or scheme; (3) that were committed while the 

defendant was “at liberty.” Unquestionably, these are “facts” that, if proven, may “increase[] the 

penalty for a crime beyond the prescribed statutory maximum . . . .” Apprendi, 530 U.S. at 491; 

see also Blakely, 124 S. Ct. at 2537 (“[T]he ‘statutory maximum’ for Apprendi purposes is the 

maximum sentence a judge may impose solely on the basis of the facts reflected in the jury 

verdict or admitted by the defendant.” (emphasis in original)). Accordingly, with the exception 

of the fact of the prior convictions, these elements must be proven to the jury beyond a 

reasonable doubt.12 

 

12 The “other than a prior conviction” language from Apprendi has its roots in 

Almendarez-Torres v. United States, 523 U.S. 224 (1998), a case in which the Supreme Court 

held that the fact of a prior conviction may be found by a judge, using a preponderance of the 
- 18 -

However, as the majority notes, there is no standard of proof during a sentencing 

proceeding. Nor does the jury make any express findings of fact prior to selecting a sentence 

from the available range of punishment. Accordingly, if this Court were to hold that proof of 

prior convictions—and, of necessity, proof that the prior convictions were not part of a common 

act and were committed while the defendant was at liberty—is inadmissible during the guilt 

phase of a trial, we would effectively be depriving the defendant of his constitutional right to 

have these elements proven to a jury beyond a reasonable doubt. See Estes v. Texas, 381 U.S. 

532, 543 (1965) (“Every procedure which would offer a possible temptation to the average man 

. . . to forget the burden of proof required to convict the defendant, or which might lead him not 

to hold the balance nice, clear and true between the State and the accused, denies the latter due 

process of law.” (internal quotations omitted)). 

Thus, where a defendant is charged with violating the three-strikes statute, disallowing 

proof of the defendant’s prior convictions during the guilt phase of the trial would give rise to 

“grave and doubtful constitutional questions.” Delaware & Hudson Co., 213 U.S. at 408. To 

avoid implicating these constitutional issues, the three-strikes statute should be construed as 

allowing introduction of evidence relating to a defendant’s prior convictions during the guilt 

phase of the trial. See id.; see also Bd. of Supervisors v. Telecomm. Indus., Inc., 246 Va. 472, 

478, 436 S.E.2d 442, 445 (1992) (“Statutory constructions that make a statute unconstitutional 

should be avoided.” (citing Jeffress v. Stith, 241 Va. 313, 317, 402 S.E.2d 14, 16 (1991))). 

V. Conclusion

Code § 19.2-297.1 does not expressly delineate the phase of trial during which evidence 

relating to the defendant’s prior convictions should be admitted. However, where a defendant is 

 

evidence standard, even if the fact of the prior conviction increases the statutory maximum. In 

Apprendi, the majority described Almendarez-Torres as “representing at best an exceptional 

departure from the historic practice that we have described.” Apprendi, 530 U.S. at 487. 
- 19 -

charged with violating a recidivist statute, this Court and the Virginia Supreme Court have 

consistently required those prior convictions to be charged in the indictment and have permitted 

introduction of the prior convictions during the guilt phase of a bifurcated trial. Moreover, 

construing the statute so as to disallow introduction of prior convictions during the guilt phase of 

trial might lead to unintended constitutional results. Accordingly, I agree that the trial court did 

not err in admitting, with a cautionary instruction, Washington’s prior convictions during the 

guilt phase of his trial, and I therefore concur in the result reached by the majority. 
- 20 -

Benton, J., with whom Fitzpatrick, C.J., joins, dissenting. 

 Code § 18.2-51 provides that “if any person maliciously wound any person or by any 

means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, 

except where it is otherwise provided, be guilty of a Class 3 felony.” In pertinent part, Code 

§ 19.2-297.1 provides as follows: 

A. Any person convicted of two or more separate acts of violence 

when such offenses were not part of a common act, transaction or 

scheme . . . shall, upon conviction of a third or subsequent act of 

violence, be sentenced to life imprisonment and shall not have any 

portion of the sentence suspended, provided it is admitted, or found 

by the jury or judge before whom he is tried, that he has been 

previously convicted of two or more such acts of violence. 

 * * * * * * * 

B. Prior convictions shall include convictions under the laws of 

any state or of the United States for any offense substantially 

similar to those listed under “act of violence” if such offense 

would be a felony if committed in the Commonwealth. 

 The Commonwealth shall notify the defendant in writing, at 

least thirty days prior to trial, of its intention to seek punishment 

pursuant to this section. 

 This appeal concerns the meaning and applications of these statutes, not the common law. 

In applying these statutes, we are guided by well established principles. 

Under basic rules of statutory construction, we determine the 

General Assembly’s intent from the words contained in the statute. 

When the language of a statute is plain and unambiguous, courts 

are bound by the plain meaning of that language. Thus, when a 

statute’s language is unambiguous, courts cannot give that 

language a construction that amounts to holding that the General 

Assembly did not mean what it actually has stated. 

Volkswagen of America v. Smit, 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations 

omitted). See also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) 

(holding that when a statute has words of a plain import courts cannot construe them in a way 

that varies the plain meaning of the language). In other words, courts are bound by the plain 
- 21 -

meaning of clear, unambiguous statutory language. Pope v. Commonwealth, 19 Va. App. 130, 

132, 449 S.E.2d 269, 270 (1994). 

 Nothing in Code § 18.2-51, the statute proscribing malicious wounding, provides that the 

occurrence of prior, separate acts of violence are elements of the offense of malicious wounding. 

Likewise, Code § 19.2-297.1, the statute that defines the effect of prior, separate acts of violence, 

does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. By its 

plain meaning, Code § 19.2-297.1 unambiguously applies during punishment only after the 

defendant has been convicted of a substantive offense. It expressly applies only “upon 

conviction of a third or subsequent act of violence,” and it provides that the convicted person 

“shall . . . be sentenced to life imprisonment” upon the terms of the statute. Code § 19.2-297.1 

(emphasis added). Significantly, Code § 19.2-297.1 also provides that the prosecutor must 

“notify the defendant in writing, at least thirty days prior to trial, of its intention to seek 

punishment pursuant to this section.” (Emphasis added). 

In short, Code § 19.2-297.1 unambiguously relates to the punishment to be imposed upon 

conviction. Reinforcing its clear, unambiguous language, the legislature enacted Code 

§ 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia under the heading “Sentence; 

Judgment; Execution of Sentence.” It is the only penalty enhancing statute in that chapter. 

Equally significant is the placement of this statute in the same title of the Code of Virginia as 

Code § 19.2-295.1, which provides for the bifurcation of trials in which evidence of prior 

criminal convictions is admitted during the punishment phase.13 

 

13 In pertinent part, Code § 19.2-295.1 provides as follows: 

 In cases of trial by jury, upon a finding that the defendant is 

guilty of a felony . . . a separate proceeding limited to the 

ascertainment of punishment shall be held as soon as practicable 

before the same jury. At such proceeding, the Commonwealth 

shall present the defendant’s prior criminal convictions by 
- 22 -

 Looking to the common law, the majority concludes that recidivism evidence has 

traditionally been presented during the guilt phase of trial. Even if that be true, it bears repeating 

that the issue before us concerns a statute that expressly applies only “upon conviction of a third 

offense or subsequent act of violence” and provides that the convicted person “shall . . . be 

sentenced to life imprisonment” upon the terms of the statute. Code § 19.2-297.1. The very 

language of Code § 19.2-297.1 is explicit evidence that the legislature did not intend to codify 

the common law principles that the majority relies upon. 

 The common law is further rendered irrelevant to this issue because a statute, Code 

§ 19.2-295.1, provides for the bifurcation of trials in Virginia and requires evidence of prior 

criminal convictions be admitted during the punishment or sentencing phase. Read together, 

Code § 19.2-297.1 and Code § 19.2-295.1 manifest the conclusion that the legislature intended 

that prior convictions be proved only during the punishment phase when the purpose is to 

establish a sentencing factor. Reading together statutes that relate to the same subject matter has 

not heretofore been deemed a “judicial graft,” but rather application of well-settled principles of 

statutory construction. The Supreme Court discussed these principles in depth almost fifty years 

ago: 

 The general rule is that statutes may be considered as in pari 

materia when they relate to the same person or thing, the same 

class of persons or things or to the same subject or to closely 

connected subjects or objects. Statutes which have the same 

general or common purpose or are parts of the same general plan 

are also ordinarily considered as in pari materia. 50 Am. Jur., 

Statutes, § 350, p. 347. 

 

certified, attested or exemplified copies of the record of conviction, 

including adult convictions and juvenile convictions and 

adjudications of delinquency. Prior convictions shall include 

convictions and adjudications of delinquency under the laws of any 

state, the District of Columbia, the United States or its territories. 
- 23 -

 In 50 Am. Jur., Statutes, § 349, pp. 345, 346, 347, it is said: 

 “Under the rule of statutory construction of statutes in pari 

materia, statutes are not to be considered as isolated fragments of 

law, but as a whole, or as parts of a great connected, homogeneous 

system, or a single and complete statutory arrangement. Such 

statutes are considered as if they constituted but one act, so that 

sections of one act may be considered as though they were parts of 

the other act, as far as this can reasonably be done. Indeed, as a 

general rule, where legislation dealing with a particular subject 

consists of a system of related general provisions indicative of a 

settled policy, new enactments of a fragmentary nature on that 

subject are to be taken as intended to fit into the existing system 

and to be carried into effect conformably to it, and they should be 

so construed as to harmonize the general tenor or purport of the 

system and make the scheme consistent in all its parts and uniform 

in its operation, unless a different purpose is shown plainly or with 

irresistible clearness. It will be assumed or presumed, in the 

absence of words specifically indicating the contrary, that the 

legislature did not intend to innovate on, unsettle, disregard, alter 

or violate a general statute or system of statutory provisions the 

entire subject matter of which is not directly or necessarily 

involved in the act.” See also 17 M.J., Statutes, § 40, p. 293, 82 

C.J.S., Statutes, § 365, p. 799. 

 The author of Sutherland Statutory Construction, 3rd Ed., In Pari 

Materia and Adopted Statutes, Vol. 2, § 5201, p. 529 has this to 

say: “Provisions in an act which are omitted in another act relating 

to the same subject matter will be applied in a proceeding under 

the other act, when not inconsistent with its purposes.” 

 In Mitchell v. Witt, 98 Va. 459, 461, 36 S.E. 528, the court 

stated: 

 “Statutes which are not inconsistent with one another, and which 

relate to the same subject matter, are in pari materia, and should be 

construed together; and effect should be given to them all, 

although they contain no reference to one another, and were passed 

at different times. Especially should effect be given, if possible, to 

statutes in pari materia enacted at the same session of the 

Legislature.” This principle was quoted with approval in 

Commonwealth v. Sanderson, 170 Va. 33, 39, 195 S.E. 516. Cf.

Wilson v. State, 117 Tex. Crim. Rep. 63, 36 S.W.2d 733. 

 In Seaboard Finance Corporation v. Commonwealth, 185 Va. 

280, 286, 38 S.E.2d 770, we said: 
- 24 -

 “It is a cardinal rule of construction that statutes dealing with a 

specific subject must be construed together in order to arrive at the 

object sought to be accomplished.” 

Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957). Accord Lucy v. 

County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485 (1999). 

As the majority opinion notes, the General Assembly enacted Code § 19.2-295.1 and 

Code § 19.2-297.1 in the same bill. We can presume, therefore, that the General Assembly 

intended that the statutes were to be understood as “imbued with the same spirit and actuated by 

the same policy.” Lilliard v. Fairfax Airport Authority, 208 Va. 8, 13, 155 S.E.2d 338, 342 

(1967). Indeed, the principle is long standing “that where two statutes are passed by the same 

session of the legislature, as was the case here, that fact furnishes strong evidence that they were 

intended to stand together.” South Norfolk v. Norfolk, 190 Va. 591, 602, 58 S.E.2d 32, 37 

(1950). This principle is to be followed even if the statutes “contain no reference to one 

another.” Prillaman, 199 Va. at 406, 100 S.E.2d at 7. 

 Simply put, both statutes are concerned with proof of prior convictions that are to be used 

as a sentencing factor. Code § 19.2-295.1 requires “a separate proceeding limited to the 

ascertainment of punishment” after a finding of guilt. Code § 19.2-297.1 specifies punishment 

for a “person convicted of two or more separate acts of violence.” The suggestion that the 

General Assembly did not intend these two statutes to stand together does not stand close 

analysis and certainly finds no foundation in the common law.14 Indeed, read together, the 

 

14 As Judge Humphreys aptly notes in Part II of his concurring opinion, Code 

§ 19.2-297.1 is an habitual criminal punishment statute that is in derogation of the common law 

and must be strictly construed in favor of the accused. When we strictly construe penal statutes, 

we must give “the accused . . . the benefit of any reasonable doubt about the construction of [the] 

statute,” Martin v. Commonwealth, 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982), and we 

“must . . . presume[] that the [General Assembly] acted with full knowledge of the strict 

interpretation that must be placed upon a statute of this nature,” Hannabass v. Ryan, 164 Va. 

519, 525, 180 S.E. 416, 418 (1935). 
- 25 -

statutes plainly manifest a codification of procedures in derogation of any common law “order of 

proof” that may have existed. The statutes contain no conflicting language; they can be and 

should be reconciled and construed together. Simply put, the principles relevant to this appeal 

are to be found in our current scheme of jurisprudence. 

 Unlike the majority opinion, the Commonwealth does not rely upon the common law but, 

instead, contends that the phrase “found by the jury,” which is contained in Code § 19.2-297.1, 

implies that the fact finder must make a finding that the defendant has twice before been 

convicted of violent offenses prescribed by the statute. I agree with this assertion, as far as it 

goes. The statutory language, however, does not require that the prior conviction evidence be 

admitted during the guilt phase of trial. Rather, it expressly provides that “upon conviction of a 

third or subsequent act of violence” that person shall be sentenced to life imprisonment, 

“provided it is admitted, or found by the jury or judge before whom [the defendant] is tried, that 

he has been previously convicted of two or more . . . acts of violence.” Code § 19.2-297.1 

(emphasis added). This statute merely requires the prosecutor to prove as an adjunct to the fact 

of the prior conviction the additional facts the General Assembly deemed to be necessary to 

obtain the enhanced penalty. By the express language of Code § 19.2-297.1, those facts are 

statutorily made relevant to the penalty to be imposed. They are appropriately the subject of a 

finding instruction, see Joseph v. Commonwealth, 249 Va. 78, 89-90, 452 S.E.2d 862, 869-70 

(1995) (discussing finding instructions concerning punishment), and require no extraordinary 

procedure at the punishment phase. Consistent with Code § 19.2-295.1 (and Rule 3A:17.1), this 

is evidence for enhancing punishment that is admissible and appropriate for the jury’s 

determination at the punishment phase of trial.15 Therefore, the trial judge must instruct the jury 

 

15 Prior to the enactment of Code § 19.2-295.1, the Supreme Court held in Brown v. 

Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983), that an accused was not denied due 

process when, during a trial that consolidated the issues of guilt and punishment, the jury was 
- 26 -

at the punishment phase (see Code § 19.2-295.1 -- where the Commonwealth “present[s] the 

defendant’s prior criminal convictions”) that it must find these additional facts if it is to impose 

the enhanced punishment required by Code § 19.2-297.1. 

 The Commonwealth also relies on Berry v. Commonwealth, 22 Va. App. 209, 468 S.E.2d 

685 (1996), to support its proposition that Code § 19.2-297.1 must be read to provide that the 

prior convictions are elements of the offense and, therefore, evidence of those convictions is 

properly submitted to the jury during the guilt phase of the trial. The short answer to this 

argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the 

offense of malicious wounding because Berry concerned an entirely different statute, Code 

§ 18.2-248. The Berry decision dealt with the issue whether a defendant’s prior narcotics 

convictions under Code § 18.2-248 were properly admitted to the jury during the guilt phase of 

the bifurcated trial in a third narcotics prosecution under Code § 18.2-248. Berry, 22 Va. App. at 

213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the statutes at issue in 

this case, Code § 18.2-248, which was the statute at issue in Berry, provides for the substantive 

offense as well as for the penalty enhancement for a subsequent offense within the same statute. 

In Berry, we relied upon this inclusion of the penalty enhancement in the same statute which 

 

informed of previous convictions required for an enhanced punishment. In so holding, the Court 

noted that the trial judge cautioned the jury not to consider the previous convictions in 

determining guilt and, significantly, the Court noted the following: 

 Brown sought a bifurcated trial, but there is no statutory 

authorization for such a procedure in this case. Bifurcated trials 

have been provided by statute only in capital murder cases, Code 

§ 19.2-264.3, and in certain traffic cases, Code § 46.1-347.2. 

There may be sound arguments for the extension of such trials to 

other offenses in Virginia, but these arguments should be 

addressed to the General Assembly. 

Id. at 59, 307 S.E.2d at 240-41 (footnote omitted). Eleven years later, in 1994, the General 

Assembly provided for bifurcated trials in felony prosecutions such as this. 
- 27 -

creates the substantive crime in determining that the penalty enhancement was an element of the 

offense. 

 Recently, in Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme 

Court held that introducing evidence of prior convictions at the guilt phase of trial did not violate 

a defendant’s constitutional right to due process under the Fourteenth Amendment. Id. at 

227-28, 532 S.E.2d at 31 (citing Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 241 

(1983)). Supporting its holding that no due process violation occurred, the Court noted that the 

trial judge in Medici instructed the jury to consider the prior convictions only as evidence of a 

prior conviction and not as evidence of the defendant’s guilt. Id. at 229, 532 S.E.2d at 32. The 

Court, however, specifically declined to address “whether the better policy would be to introduce 

a prior conviction into evidence only during the sentencing phase . . . [or] whether a prior 

conviction is an element of the offense charged.” Id. The Court declined to do so because the 

issue raised by Medici dealt solely with whether his constitutional due process rights were 

violated. Id. 

 In simple terms, the Supreme Court declined to decide the state-law issue in Medici

because Medici raised only a federal constitutional due process issue. The United States 

Supreme Court has recognized the proposition that, although it is usually the case that prejudice 

is necessary to establish a violation of due process, see Estes v. Texas, 381 U.S. 532, 542-43 

(1965); Hamilton v. Alabama, 368 U.S. 52, 55 (1961), a claim of prejudice is not virtually 

identical to a claim of a due process violation. As the Court has noted, “proof of prejudice is 

generally a necessary but not sufficient element of a due process claim.” United States v. 

Lovasco, 431 U.S. 783, 790 (1977). 

Unlike the majority here, I believe the statute’s notice requirement, our bifurcated trial 

procedure, and the use of recidivism as a classic sentencing factor (reflecting society’s 
- 28 -

determination that a defendant deserves enhanced punishment after a third conviction) provide 

additional indications that the legislature intended Code § 19.2-297.1 to function as part of 

Virginia’s sentencing scheme. Quite simply, to conclude that the crime of malicious wounding 

includes the element of a sentencing aggravator, unrelated to the charged crime, is illogical. The 

Supreme Court’s decision in Spencer v. Texas, 385 U.S. 554, 572 (1967), does not require that 

we read Code § 19.2-297.1 in such a manner. Like Medici, Spencer dealt with the due process 

issue of allowing a defendant’s prior convictions during the guilt phase, and not an issue of 

statutory construction. 385 U.S. at 559. Significantly, the Court noted that prior conviction 

“evidence is generally recognized to have potentiality for prejudice.” Id. at 560. The Court 

deferred, however, to the procedures adopted under each state’s “complex code of state criminal 

evidentiary law” as the mechanism for ameliorating the prejudice. Id. at 562. 

In a concurring and dissenting opinion, Chief Justice Warren noted that, as a logical 

proposition, “[t]he admission [of prior convictions] in connection with enhancing punishment for 

repeating offenders has nothing whatever to do with the question of guilt or innocence of the 

crime currently charged.” Id. at 579. He further observed the following: 

Because of the complete irrelevance of prior convictions to the 

question of guilt or innocence, the recidivist situation is not one 

where the trial courts are called upon to balance the probative 

value of prior convictions against their prejudicial impact. The 

purpose of admitting prior-convictions evidence should be served 

and prejudice completely avoided by the simple expedient of a 

procedure which reflects the exclusive relevance of recidivist 

statutes to the issue of proper punishment. Only after a defendant 

has been found guilty does the question of whether he fits the 

recidivist category become relevant to the sentence, and any issue 

of fact as to his prior convictions should then be decided by the 

jury. 

Id. 

These observations are apt because we have in Virginia a statutorily mandated system of 

bifurcated trials. The Supreme Court of Virginia recognized this, and the irrelevance of a 
- 29 -

defendant’s prior convictions during the guilt phase, in Medici, when it posed without answering 

the question “whether the better policy would be to introduce a prior conviction into evidence 

only during the sentencing phase . . . [or] whether a prior conviction is an element of the offense 

charged.” 260 Va. at 229, 532 S.E.2d at 32. Contrarily, the majority concludes that the 

recidivist statute mandates that a defendant’s prior convictions must be proven during the 

prosecution’s case-in-chief. This construction of the statute ignores the irrelevance of 

Washington’s prior conviction to the question of guilt or innocence of the malicious wounding 

charge. Furthermore, it creates a procedure by which the Commonwealth will needlessly and 

unfairly benefit from the prejudicial effect of the prior convictions. 

A “bedrock principle of Anglo-American jurisprudence,” see generally, 1 John H. 

Wigmore, A Treatise On The Anglo-American System Of Evidence In Trials At Common Law, 

§§ 55-68a, at 449-91 (3d ed. 1940), is the recognition of the prejudice of a defendant’s prior 

convictions. 

The State may not show defendant's prior trouble with the law, 

specific criminal acts, or ill name among his neighbors, even 

though such facts might logically be persuasive that he is by 

propensity a probable perpetrator of the crime. The inquiry is not 

rejected because character is irrelevant; on the contrary, it is said to 

weigh too much with the jury and to so overpersuade them as to 

prejudge one with a bad general record and deny him a fair 

opportunity to defendant against a particular charge. The 

overriding policy of excluding such evidence, despite its admitted 

probative value, is the practical experience that its disallowance 

tends to prevent confusion of issues, unfair surprise and undue 

prejudice. 

Michelson v. United States, 335 U.S. 469, 475-76 (1948) (Jackson, J., concurring). Virginia has 

of course recognized this long standing prohibition against admitting prior crimes. Absent some 

exception to the general rule, “evidence implicating an accused in other crimes unrelated to the 

charged offense is inadmissible because it may confuse the issues being tried and cause undue 

prejudice to the defendant.” Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d 489, 491 
- 30 -

(1998); Limbaugh v. Commonwealth, 149 Va. 383, 383, 140 S.E. 133, 135 (1927) (noting that 

“[t]he accused comes to trial to meet the specific charge against him, not to vindicate or to 

explain every collateral charge that may be made in the course of the introduction of the 

evidence”). 

I cannot conclude, as does the majority, that the legislature intended to needlessly 

prejudice a defendant by enacting Code § 19.2-297.1. The principle is well established that 

evidence of other crimes, admitted in the prosecution’s case-in-chief, creates undue prejudice, 

reverses the presumption of innocence, and constitutes reversible error, notwithstanding the 

absence of a claim of a due process violation. Lewis v. Commonwealth, 225 Va. 497, 501-02, 

303 S.E.2d 890, 893 (1983). See also Donahue v. Commonwealth, 225 Va. 145, 156, 300 S.E.2d 

768, 774 (1983). “The principle that there is a presumption of innocence in favor of the accused 

is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the 

administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453 (1895). Even 

evidence of a defendant’s prior misconduct “will usually sink the defense without [a] trace,” 

Edward Imwinkelried, Uncharged Misconduct Evidence § 1:02 (2004) (citing Elliott, The Young 

Person’s Guide to Similar Fact Evidence, 1983 Crim. L. Rev. 284), while evidence of prior 

crimes is “the most prejudicial evidence imaginable against an accused.” Id. (quoting People v. 

Smallwood, 722 P.2d 197, 205 (Cal. 1986) (superseded by Cal. Evid. Code § 1108). 

This basic foundation of our jurisprudence is inconsistent with allowing prior convictions 

as evidence during the guilt phase under the guise of concluding that it is warranted because the 

statute at issue is a recidivist statute. Citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), 

and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), the Commonwealth suggests 

it is a kind of constitutional imperative to require the proof of prior convictions during the guilt 

phase. Yet, the Commonwealth’s analysis conflates the rationale supporting those cases. The 
- 31 -

Apprendi line of cases upholds the sanctity of a defendant’s right to a trial by jury and the 

defendant’s due process right to require the Commonwealth to prove each element of the crime 

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). To claim that 

Washington’s due process rights are protected, as in Apprendi and Blakely, is simply not tenable. 

Here, introducing Washington’s prior convictions during the guilt phase needlessly prejudiced 

Washington without advancing any legitimate interest of the State. Simply put, the 

Commonwealth, not Washington, will benefit from the introduction of the prior convictions. 

Pointlessly, in light of our system of bifurcated jury trials. That system was designed to 

eliminate the undue prejudice of putting before the jury at the guilt stage evidence of other 

crimes, which has the effect of stigmatizing a defendant and predisposing a jury to a finding of 

guilt. 

Although the trial judge instructed the jury during the guilt phase that “[e]vidence that the 

defendant was previously convicted of prior offenses should be considered by you only for proof 

of the element of a prior conviction and not as proof that he committed the offense to which he is 

charged,” the trial judge also instructed the jury, in pertinent part, as follows: 

 The Commonwealth must prove beyond a reasonable doubt 

each of the following elements of that crime: 

(1) That the defendant wounded or caused bodily injury 

 by any means to Kathleen Monroe; and 

(2) That such wounding or bodily injury was with intent 

 to maim, disfigure, disable or kill Kathleen Monroe; and 

(3) That the act was done with malice; and 

(4) That the defendant has been previously convicted 

 of two violent felonies. 

 If you find from the evidence that the Commonwealth has 

proved beyond a reasonable doubt each of the above elements of 

the offense as charged, then you shall find the defendant guilty of 

maliciously wounding or causing bodily injury. 
- 32 -

The first instruction cannot be reconciled with the latter finding instruction because the 

finding instruction tells the jury that the previous convictions are “elements of the crime,” i.e., if 

those previous convictions are proved they constitute proof that he committed the offense with 

which he is charged. 

 The normal presumption is that the jury will follow a curative 

instruction. Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). 

However, this presumption cannot apply when the curative 

instruction fails by its own terms to address the error. 

United States v. Hall, 989 F.2d 711, 717 (4th Cir. 1993). 

 Furthermore, the error in admitting the evidence at the guilt phase was so deliberate and 

so impressive that, despite the attempt at a curative instruction, the error likely influenced the 

jury. As the Supreme Court has held, “there are some contexts in which the risk that the jury 

will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the 

defendant, that the practical and human limitations of the jury system cannot be ignored.” 

Bruton v. United States, 391 U.S. 123, 135 (1968). An appellate court cannot presume the jury 

followed a curative instruction when there “exist[s] the overwhelming probability of their 

inability to do so,” Richardson v. Marsh, 481 U.S. 200, 208 (1987), or when there “are 

deliberately spread before the jury . . . incriminations devastating to the defendant,” Bruton, 391 

U.S. at 136. In view of our bifurcated trial procedure, we are not free to ignore that legislatively 

mandated protection and needlessly accept the inevitable potential for prejudice. 

 For all of these reasons, I would hold that the statute, by its express terms, applies after 

the conviction. The absence of a constitutional due process prohibition to allowing prior 

convictions does not, in my mind, equate to a license to do so. Nothing in Code § 19.2-297.1 

requires us to construct the statute in such a way to prejudice Washington, and countless other 

defendants, for no purpose except to give the Commonwealth the unfair advantage of presenting 

prior convictions to the jury as it assesses a defendant’s guilt or innocence. I dissent.
 Tuesday 23rd 

 November, 2004. 

Phillip Morris Washington, Appellant, 

 against Record No. 1734-03-4 

 Circuit Court Nos. CR01000321-00 and CR01000321-01 

Commonwealth of Virginia, Appellee. 

 Upon a Petition for Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, 

Frank, Humphreys, Clements, Felton, Kelsey and McClanahan 

 On November 8, 2004 came the appellee, by the Attorney General of Virginia, and filed a 

petition praying that the Court set aside the judgment rendered herein on October 26, 2004, and grant a 

rehearing en banc thereof. 

 On consideration whereof, the petition for rehearing en banc is granted, the mandate entered 

herein on October 26, 2004 is stayed pending the decision of the Court en banc, and the appeal is 

reinstated on the docket of this Court. 

 The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an 

addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the 

Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve 

additional copies of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk
COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan 

Argued by teleconference 

PHILLIP MORRIS WASHINGTON 

 OPINION BY 

v. Record No. 1734-03-4 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 26, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

Ann Hunter Simpson, Judge 

 Joseph Taylor Brown (Simmons, Brown & Kane, P.L.C., on brief), 

for appellant. 

 Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 A jury convicted Phillip Morris Washington upon an indictment charging that he 

committed a malicious wounding “after having been twice convicted of a violent felony,” in 

violation of Code § 18.2-51 and § 19.2-297.1, and that he committed a wounding during the 

commission of a felony in violation of Code § 18.2-53. On appeal, Washington contends that the 

trial judge erred in permitting the prosecutor to prove two prior robbery convictions during the 

guilt phase of the bifurcated trial. We hold that the felony convictions, which must be proved to 

invoke Code § 19.2-297.1, are not elements of the malicious wounding offense proscribed by 

Code § 18.2-51. We, therefore, reverse the conviction and remand for a new trial. 

I. 

 Prior to trial, Washington filed a motion in limine to prohibit the prosecutor from 

introducing evidence of his prior violent felony convictions during the guilt phase of the trial. 

His motion asserts that this “evidence is not ‘relevant and probative of . . . an element of the 
- 2 - 

offense’” and that “it would be unduly prejudicial for the Commonwealth to refer to such 

evidence before any finding of guilt.” The Commonwealth argued “that is an element of its 

proof in its case-in-chief.” The trial judge denied Washington’s motion, ruling that the 

Commonwealth had the burden of proving the two prior violent felony convictions and that the 

jury was required to make the factual finding during the guilt phase of trial. During the 

Commonwealth’s case-in-chief at the guilt phase of the trial, the prosecutor introduced as 

evidence two prior conviction orders for robberies committed by Washington. At the conclusion 

of the evidence at the guilt phase, the jury found “the defendant guilty of malicious wounding . . . 

after having been previously convicted of two violent felonies” and guilty of unlawful wounding 

during the commission of a felony. 

 During the punishment phase, the prosecutor informed the jury that “because it was an 

element of the offense, you got to see [during the guilt phase] the conviction orders for Mr. 

Washington for two violent felonies.” At the conclusion of their deliberations, the jury fixed 

Washington’s punishment at life imprisonment for the malicious wounding offense, the 

mandatory sentence required by Code § 19.2-291.1, and at five years imprisonment and a five 

hundred dollar fine for a wounding while committing a felony. The trial judge sentenced 

Washington according to the jury’s verdict. 

II. 

 Washington contends that the trial judge erred in permitting the introduction of evidence 

of the two prior felony convictions at the guilt phase of the trial. He argues that Code 

§ 19.2-297.1 does not create an element of the offense proscribed in Code § 18.2-51, that the 

statutes do not require that the prior convictions be proven during the Commonwealth’s 

case-in-chief, and that the admission of the evidence of the convictions before the punishment 
- 3 - 

phase begins is prejudicial. The Commonwealth contends the two prior felony convictions are 

elements of the offense and must be submitted to the jury during the guilt phase. 

 We resolve this issue by reviewing the statutes. Code § 18.2-51 provides that “if any 

person maliciously wound any person or by any means cause him bodily injury, with the intent 

to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a 

Class 3 felony.” In pertinent part, Code § 19.2-297.1 provides as follows: 

A. Any person convicted of two or more separate acts of violence 

when such offenses were not part of a common act, transaction or 

scheme . . . shall, upon conviction of a third or subsequent act of 

violence, be sentenced to life imprisonment and shall not have any 

portion of the sentence suspended, provided it is admitted, or found 

by the jury or judge before whom he is tried, that he has been 

previously convicted of two or more such acts of violence. 

 * * * * * * * 

B. Prior convictions shall include convictions under the laws of 

any state or of the United States for any offense substantially 

similar to those listed under “act of violence” if such offense 

would be a felony if committed in the Commonwealth. 

 The Commonwealth shall notify the defendant in writing, at 

least thirty days prior to trial, of its intention to seek punishment 

pursuant to this section. 

 In applying these statutes, we are guided by well established principles. 

Under basic rules of statutory construction, we determine the 

General Assembly’s intent from the words contained in the statute. 

When the language of a statute is plain and unambiguous, courts 

are bound by the plain meaning of that language. Thus, when a 

statute’s language is unambiguous, courts cannot give that 

language a construction that amounts to holding that the General 

Assembly did not mean what it actually has stated. 

Volkswagen of America v. Smit, 266 Va. 444, 452, 587 S.E.2d 526, 531 (2003) (citations 

omitted). See also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365 (2001) 

(holding that, when a statute has words of a plain import, courts cannot construe them in a way 

that varies the plain meaning of the language). In other words, courts are bound by the plain 
- 4 - 

meaning of clear, unambiguous statutory language. Pope v. Commonwealth, 19 Va. App. 130, 

132, 449 S.E.2d 269, 270 (1994). 

 Nothing in Code § 18.2-51, the statute proscribing malicious wounding, provides that the 

occurrence of prior, separate acts of violence are elements of the offense of malicious wounding. 

Likewise, Code § 19.2-297.1, the statute that defines the effect of prior, separate acts of violence, 

does not provide that these acts are elements of the offense proscribed by Code § 18.2-51. 

Indeed, by its express terms, Code § 19.2-297.1 applies only “upon conviction of a third or 

subsequent act of violence,” and it provides that the convicted person “shall . . . be sentenced to 

life imprisonment” upon the terms of the statute. (Emphasis added). Significantly, Code 

§ 19.2-297.1 also provides that the prosecutor must “notify the defendant in writing, at least 

thirty days prior to trial, of its intention to seek punishment pursuant to this section.” (Emphasis 

added). 

In short, Code § 19.2-297.1 unambiguously relates to the punishment to be imposed upon 

conviction. Reinforcing its clear, unambiguous language, the legislature enacted Code 

§ 19.2-297.1 in Title 19.2, Chapter 18, of the Code of Virginia under the heading “Sentence; 

Judgment; Execution of Sentence.” It is the only penalty enhancing statute in that chapter. 

Equally significant is the placement of this statute in the same title of the Code of Virginia as 

Code § 19.2-295.1, which provides for the bifurcation of trials in which evidence of prior 

criminal convictions is admitted during the punishment phase.1

 1

 In pertinent part, Code § 19.2-295.1 provides as follows: 

 In cases of trial by jury, upon a finding that the defendant is 

guilty of a felony . . . a separate proceeding limited to the 

ascertainment of punishment shall be held as soon as practicable 

before the same jury. At such proceeding, the Commonwealth 

shall present the defendant’s prior criminal convictions by 

certified, attested or exemplified copies of the record of conviction, 

including adult convictions and juvenile convictions and 
- 5 - 

 The Commonwealth asserts that the phrase “found by the jury,” which is contained in 

Code § 19.2-297.1, implies that the fact finder must make a finding that the defendant has twice 

before been convicted of violent offenses prescribed by the statute. We agree with this assertion, 

as far as it goes. The statutory language, however, does not require that the prior conviction 

evidence be admitted during the guilt phase of trial. Rather, it expressly provides that “upon 

conviction of a third or subsequent act of violence” that person shall be sentenced to life 

imprisonment, “provided it is admitted, or found by the jury or judge before whom [the 

defendant] is tried, that he has been previously convicted of two or more . . . acts of violence.” 

Code § 19.2-297.1 (emphasis added). Consistent with Code § 19.2-295.1, this is evidence for 

enhancing punishment that is admissible and appropriate for the jury’s determination at the 

punishment phase of trial.2

 The Commonwealth also relies on Berry v. Commonwealth, 22 Va. App. 209, 468 S.E.2d 

685 (1996), to support the proposition that Code § 19.2-297.1 must be read to provide that the 

 

adjudications of delinquency. Prior convictions shall include 

convictions and adjudications of delinquency under the laws of any 

state, the District of Columbia, the United States or its territories. 

2

 Prior to the enactment of Code § 19.2-295.1, the Supreme Court held in Brown v. 

Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 241 (1983), that an accused was not denied due 

process when, during a trial that consolidated the issues of guilt and punishment, the jury was 

informed of previous convictions required for an enhanced punishment. In so holding, the Court 

noted that the trial judge cautioned the jury not to consider the previous convictions in 

determining guilt and, significantly, the Court noted the following: 

 Brown sought a bifurcated trial, but there is no statutory 

authorization for such a procedure in this case. Bifurcated trials 

have been provided by statute only in capital murder cases, Code 

§ 19.2-264.3, and in certain traffic cases, Code § 46.1-347.2. 

There may be sound arguments for the extension of such trials to 

other offenses in Virginia, but these arguments should be 

addressed to the General Assembly. 

Id. at 59, 307 S.E.2d at 240-41 (footnote omitted). Eleven years later, in 1994, the General 

Assembly provided for bifurcated trials in felony prosecutions such as this case. 
- 6 - 

prior convictions are elements of the offense and, therefore, evidence of those convictions is 

properly submitted to the jury during the guilt phase of the trial. The short answer to this 

argument is that Berry does not require that we hold that Code § 19.2-297.1 is an element of the 

offense of malicious wounding because Berry concerned an entirely different statute, Code 

§ 18.2-248. The Berry decision dealt with the issue whether a defendant’s prior narcotics 

convictions under Code § 18.2-248 were properly admitted to the jury during the guilt phase of 

the bifurcated trial in a third narcotics prosecution under Code § 18.2-248. Berry, 22 Va. App. at 

213, 468 S.E.2d at 687. Unlike Code § 18.2-51 and Code § 19.2-297.1, the statutes at issue in 

this case, Code § 18.2-248, which was the statute at issue in Berry, provides for the substantive 

offense as well as for the penalty enhancement for a subsequent offense within the same statute. 

In Berry, we relied upon this inclusion of the penalty enhancement in the same statute which 

creates the substantive crime in determining that the penalty enhancement was an element of the 

offense. 

 Recently, in Medici v. Commonwealth, 260 Va. 223, 532 S.E.2d 28 (2000), the Supreme 

Court held that introducing evidence of a prior conviction at the guilt phase of trial did not 

violate a defendant’s constitutional right to due process under the Fourteenth Amendment. Id. at 

227-28, 532 S.E.2d at 31 (citing Brown, 226 Va. at 59, 307 S.E.2d at 241). Supporting its 

holding that no due process violation occurred, the Court noted that the trial judge in Medici

instructed the jury to consider the prior convictions only as evidence of a prior conviction and 

not as evidence of the defendant’s guilt. Id. at 229, 532 S.E.2d at 32. The Court, however, 

specifically declined to address “whether the better policy would be to introduce a prior 

conviction into evidence only during the sentencing phase . . . [or] whether a prior conviction is 

an element of the offense charged.” Id. The Court declined to do so because the issue raised by 

Medici dealt solely with whether his constitutional due process rights were violated. Id. 
- 7 - 

 In simple terms, the Supreme Court declined to decide the state-law issue in Medici

because Medici raised only a constitutional due process issue. The United States Supreme Court 

has recognized the proposition that, although it is usually the case that prejudice is necessary to 

establish a violation of due process, see Estes v. Texas, 381 U.S. 532, 542-43 (1965); Hamilton 

v. Alabama, 368 U.S. 52, 55 (1961), a claim of prejudice is not virtually identical to a claim of a 

due process violation. As the United States Supreme Court has noted, “proof of prejudice is 

generally a necessary but not sufficient element of a due process claim.” United States v. 

Lovasco, 431 U.S. 783, 790 (1977). 

 In this case, Washington argued that under state law the evidence of prior violent 

convictions was not an element of malicious wounding. See Code § 18.2-51. The trial judge 

ruled that it was and permitted the prosecutor to prove those convictions in the Commonwealth’s 

case-in-chief at the guilt phase of the bifurcated trial. We hold that the trial judge erred in ruling 

that the prior convictions, which are required for the enhanced punishment under Code 

§ 19.2-297.1, are elements of the offense and in admitting evidence of those convictions during 

the guilt phase of the trial.3 

 3

 Although the trial judge later instructed the jury during the guilt phase that “[e]vidence 

that the defendant was previously convicted of prior offenses should be considered by you only 

for proof of the element of a prior conviction and not as proof that he committed the offense to 

which he is charged,” the trial judge also instructed the jury, in pertinent part, as follows: 

 The Commonwealth must prove beyond a reasonable doubt 

each of the following elements of that crime: 

(1) That the defendant wounded or caused bodily injury 

 by any means to Kathleen Monroe; and 

(2) That such wounding or bodily injury was with intent 

 to maim, disfigure, disable or kill Kathleen Monroe; and 

(3) That the act was done with malice; and 

(4) That the defendant has been previously convicted 

 of two violent felonies. 
- 8 - 

 The general rule is well established that in a criminal 

prosecution, proof which shows or tends to show that the accused 

is guilty of the commission of other crimes and offenses at other 

times, even though they are of the same nature as the one charged 

in the indictment, is incompetent and inadmissible for the purpose 

of showing the commission of the particular crime charged. 

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970). 

Absent some exception to the general rule, “evidence implicating an accused in other 

crimes unrelated to the charged offense is inadmissible because it may confuse the issues being 

tried and cause undue prejudice to the defendant.” Guill v. Commonwealth, 255 Va. 134, 138, 

495 S.E.2d 489, 491 (1998). As in this case, the evidence “had the effect of impeaching [the 

defendant’s] character, which he had not put in issue, and led to the inference that because of a 

criminal propensity he probably committed the crime for which he was being tried.” Fleenor v. 

Commonwealth, 200 Va. 270, 275, 105 S.E.2d 160, 163 (1958). The principle is well 

established, however, that evidence of other crimes, which are improperly admitted in the 

prosecution’s case-in-chief creates undue prejudice and constitutes reversible error, 

notwithstanding the absence of a claim of a due process violation. Lewis v. Commonwealth, 225 

Va. 497, 501-02, 303 S.E.2d 890, 893 (1983). See also Donahue v. Commonwealth, 225 Va. 

145, 156, 300 S.E.2d 768, 774 (1983). 

Accordingly, we reverse the conviction and remand for a new trial. 

 Reversed and remanded. 

 

 If you find from the evidence that the Commonwealth has 

proved beyond a reasonable doubt each of the above elements of 

the offense as charged, then you shall find the defendant guilty of 

maliciously wounding or causing bodily injury. 

 The first instruction cannot be reconciled with the latter finding instruction because the 

finding instruction tells the jury that the previous convictions are “elements of the crime,” i.e., 

proof that he committed the offense to which he is charged. 
- 9 - 

McClanahan, J. dissenting. 

Because prior precedent binds us, I would affirm the judgment of the trial court. See 

generally Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 143 (2002) (citing 

Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990)); Pulliam v. Coastal 

Emergency Servs., Inc., 257 Va. 1, 10, 509 S.E.2d 307, 312 (1999); Johnson v. Commonwealth, 

252 Va. 425, 430, 478 S.E.2d 539, 541 (1996); Selected Risks Ins. Co. v. Dean, 233 Va. 260, 

265, 355 S.E.2d 579, 581 (1987); Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73-74, 577 

S.E.2d 538, 540 (2003) (noting that the principle that courts are bound by the doctrine of stare 

decisis “applies not merely to the literal holding of the case, but also to its ratio decidendi – the 

essential rationale in the case that determined the judgment”); Bostic v. Commonwealth, 31 

Va. App. 632, 635-36, 525 S.E.2d 67, 68 (2000); see also Code § 17.1-402(D). 

Prior Supreme Court of Virginia and Court of Appeals of Virginia cases have authorized 

the admission of recidivists’ prior convictions in the guilt phase of trials for the purpose of 

enhanced punishment. See e.g., Medici v. Commonwealth, 260 Va. 223, 229, 532 S.E.2d 28, 32 

(2000); Brown v. Commonwealth, 226 Va. 56, 58-59, 307 S.E.2d 239, 240 (1983); Berry v. 

Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687 (1996); Pittman v. Commonwealth, 

17 Va. App. 33, 35-36, 434 S.E.2d 694, 695-96 (1993); Farmer v. Commonwealth, 10 Va. App. 

175, 179-80, 390 S.E.2d 775, 776-77 (1990), aff’d on reh’g, 12 Va. App. 337, 404 S.E.2d 371 

(1991) (en banc). 

The majority opinion holds that the three-strikes law allows admission of evidence of 

prior crimes only in the sentencing phase of a bifurcated trial. The General Assembly 

established bifurcated jury trials for felonies or Class 1 misdemeanors in Code § 19.2-295.1 in 

1994. Both Berry and Medici were decided post-1994. The issues in those cases, whether the 

bifurcation statute prohibits evidence of prior convictions from being admitted in the guilt phase, 
- 10 - 

and whether admission of prior convictions in that phase violates a defendant’s right to due 

process, respectively, are the identical issues raised in this case.4 The appellant argues that “the 

factual determination [of his prior crimes] must be made during the sentencing phase of the trial” 

and that the trial court “failed to guarantee [his] right to a fair trial and due process.” Berry held 

that the bifurcation statute does not prevent the introduction of evidence of prior convictions in 

the guilt phase. Berry, 22 Va. App. at 213, 468 S.E.2d at 687. Medici held that admission of the 

prior crimes in the guilt/innocence phase does not violate due process. Medici, 260 Va. at 229, 

532 S.E.2d at 32. See also Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (reaffirming 

Spencer v. Texas, 385 U.S. 554, 567-69 (1967) (holding that admission of evidence of prior 

felonies at the guilt phase of a trial does not violate due process)). The majority’s attempts to 

distinguish Berry and Medici are, in my view, not persuasive.5

 

 4

 The existence of the bifurcation statute does not change the requirement of proving 

prior convictions under the recidivist statute, even if the provision for enhanced punishment is 

contained in a separate statute from the charged offense. Either way, “[w]hen sentence 

enhancement is an issue, the Commonwealth has the burden of proving the existence of a 

defendant’s prior, valid convictions.” Harris v. Commonwealth, 26 Va. App. 794, 803, 497 

S.E.2d 165, 169 (1998); see also Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 740, 

741-42 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403, 409, 413, 4 S.E.2d 762, 764, 766 

(1939)). Moreover, the statute in this case requires the judge or jury to make a finding on the 

previous convictions. Code § 19.2-297.1. When findings are made at the sentencing phase of 

the trial, the questions then presented are: 1) what the burden of proof at that phase of the trial 

should be – preponderance of the evidence or beyond a reasonable doubt, cf. Blakely v. 

Washington, ___ U.S. ___ (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000); In re Winship, 

397 U.S. 358 (1970); and 2) what evidentiary rules apply at that phase of the trial. Blakely, ___ 

U.S. at ___ (Breyer, J., dissenting) (citing United States v. Watts, 519 U.S. 148, 153-57 (1997) 

(per curiam)); cf. Witte v. United States, 515 U.S. 389, 399-401 (1995). 

In this case, jury instructions stated that the previous convictions were elements that the 

Commonwealth was required to prove beyond a reasonable doubt. The judge also gave a 

cautionary instruction that stated that the jury should consider evidence of the prior convictions 

“only for proof of the element of a prior conviction and not as proof that he committed the 

offense” with which he was charged. See Simpson v. Commonwealth, 199 Va. 549, 554, 100 

S.E.2d 701, 705 (1957). 

5

 The majority attempts to distinguish Berry by stating that the statute at issue in Berry, 

Code § 18.2-248, provides for both the substantive offense and penalty enhancement for a 

subsequent offense within the same statute, therefore making it an element of the offense. 
- 11 - 

 A panel of this Court is not authorized to overrule established precedent. See Robinson

v. Commonwealth, 13 Va. App. 540, 543, 413 S.E.2d 661, 662 (1992) (“Under the rule 

of stare decisis, a decision by a panel of this court is an established precedent.”); Roane 

 

Because the penalty enhancement in this case falls under Title 19.2 of the Code, the majority 

finds it is not an element of the offense and, thus, Berry does not apply. 

However, in Brown, 226 Va. at 58-59, 307 S.E.2d at 240, the Supreme Court addressed 

admission of prior crimes under Code § 19.2-297, a statute that has since been repealed. That 

statute employed nearly identical language to the statute at issue in the case at bar, except that it 

provided enhanced penalties for larcenies rather than violent felonies. Like the statute in this 

case, it also fell under Title 19.2. Additionally, because Code § 19.2-297.1 is a general 

recidivism statute that applies to numerous criminal statutes, its placement in Title 19.2 saves 

repetition of its provisions in each of the substantive criminal statutes to which it applies. 

Finally, names or titles of statutes do not control statutory construction. Code § 1-13.9. 

With regard to Medici, the majority attempts to distinguish it by stating that it “dealt 

solely with whether his constitutional due process rights were violated.” The majority holds that 

admission of the prior convictions is prejudicial and therefore is distinguished from a claim of a 

due process violation. In the case at bar, the question presented is whether the trial court erred in 

admitting “two prior felony convictions during the culpability phase of the trial,” which was for 

the purpose of the sentence enhancement under the so-called three-strikes law. However, 

appellant does not attempt to distinguish, as the majority does, a claim of prejudice and due 

process. Appellant argues, 

The Defendant’s state and federal constitutional rights to a 

fair trial require that no unnecessary prejudicial evidence be 

entered against the Defendant. The trial court did not follow that 

language and meaning of the statute and failed to guarantee the 

Defendant’s right to a fair trial and due process. The Defendant 

did not receive a fair trial because of this prejudice. 

In fact, whether a circumstance is prejudicial is inherently a question of due process: 

“Every procedure which would offer a possible temptation 

to the average man . . . to forget the burden of proof required to 

convict the defendant, or which might lead him not to hold the 

balance nice, clear and true between the State and the accused, 

denies the latter due process of law.” 

Estes v. Texas, 381 U.S. 532, 543 (1965) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). 

“[M]ost cases involving claims of due process deprivations . . . require a showing of 

identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State 

involves such a probability that prejudice will result that it is deemed inherently lacking in due 

process.” Id. at 542-43. Thus, whether admission of the two felonies is prejudicial is essentially 

a question of due process. The Supreme Court has held that admission of evidence of prior 

felonies at the guilt phase of a trial does not violate due process. Spencer, 385 U.S. at 567-68; 

see also Lonberger, 459 U.S. at 438 n.6. 
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v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991) (“[W]e are bound by the decisions 

of the Supreme Court of Virginia and are without authority to overrule [them].”). Though the 

statutes at issue in the recidivism cases cited above are not the specific statute at issue in this 

case, stare decisis requires that we are bound by not just the literal holding in the case, but by the 

essential rationale that determines the judgment of the case. Clinchfield Coal, 40 Va. App. at 

73-74, 577 S.E.2d at 540. Therefore, I respectfully dissent.